On appeal, defendant argues that "[t]he elements of child endangerment are
subsumed in the elements of child neglect" and that the trial court erred when it failed to
merge defendant's convictions for endangering the welfare of a minor into her
convictions for child neglect in the first degree. The state concedes that the "'controlled
substances were being criminally delivered for consideration and profit' element
necessarily includes the 'unlawful activity involving a controlled substance' element," but
argues that "there exists a significant difference between the child-neglect element of
'allowing' a child 'to stay' on 'premises' and * * * the endangering element of 'permitting'
a child to 'enter or remain in a place.'"

Here, we do not agree that proof that defendant "allowed children to stay"
and "permitted children to remain" require proof of different elements. We note at the
outset that "allow" and "permit" are synonyms, Webster's Third New Int'l Dictionary 58,
1683 (unabridged ed 1993), as are "stay" and "remain," Id. at 2231, 1919. We have
previously construed the word "permit" and required that "[b]efore one can be said to
'permit' something, one must have authority to forbid it." State v. Pyritz, 90 Or App 601,
605, 752 P2d 1310 (1988) (construing ORS 167.222(1)). The state argues that the child
neglect prohibition against allowing a child to stay in a place where drugs are sold or
used requires proof that the person has authority over the child, while the child
endangerment prohibition against permitting a child to remain requires proof that the
person has authority over the place. That is a distinction without a difference. The
owner of the place where drugs are being sold or used has authority over the child by
virtue of the person's ownership of the place, just as others have authority over the child
by virtue of their positions as parent, guardian, teacher, or public official. Contrary to the
state's argument, a person with custody or control of a child certainly does have the
authority to prohibit the child from remaining in a place, notwithstanding the fact that the
person has no authority over the place.

Reversed and remanded for entry of judgment merging four convictions for
endangering the welfare of a minor into four convictions for child neglect in the first
degree and for resentencing; otherwise affirmed.

"A person having custody or control of a child under 16 years of age
commits the crime of child neglect in the first degree if the person
knowingly leaves the child, or allows the child to stay * * * on premises
and in the immediate proximity where controlled substances are criminally
delivered or manufactured for consideration or profit."

"A person commits the offense of frequenting a place where
controlled substances are used if the person keeps, maintains, frequents, or
remains at a place, while knowingly permitting persons to use controlled
substances in such place or to keep or sell them in violation of ORS
475.005 to 475.285 and 475.940 to 475.995."

4. ORS 161.062 and ORS 161.067 are two virtually identical statutes
addressing the same issue. ORS 161.062(1) provides, in part:

"When the same conduct or criminal episode violates two or more
statutory provisions and each provision requires proof of an element that
the others do not, there are as many separately punishable offenses as there
are separate statutory violations."

See State v. Crotsley, 308 Or 272, 276-78, 779 P2d 600 (1989) (legislative history of
ORS 161.062 and ORS 161.067).